delivered the opinion of the court.
We think it plain from,the evidence that John C. Ayers,, the insured, came to his death by external, violent and accidental means, and counsel for appellant do not claim the contrary, but insist that liability is excluded by the terms of the policy. This, too, was the position of the appellant, when proofs of death were furnished to it, as appears from a letter written to appellee’s attorney, by J. It. Lewis, adjuster for appellant, in which the following occurs: “Upon examination of said proofs, I find that the cause of death, as therein; stated, is not covered by said policy, and the circumstances? attending the alleged accidental death do not bring it within the provisions of the policy.”
Counsel contend that the court erred in refusing to give the following instruction asked by appellant:
“The jury are instructed that the policy of insurance sued' on in this case does not cover injuries of which there is no-visible mark on the body, the body itself in case of death not to be deemed such mark, and, therefore, if you believe: from the evidence that John 0. Ayers, the person named im the policy of insurance sued on in this case, came to his death from injuries of which there was no visible mark on the-body of said John C. Ayers, then you must find the issues, for the defendant.”
The instruction was properly refused for three reasons:: first, it consists of matter of defense and was not pleaded, and which, to be availed of, should be specially pleaded. 4 Joyce on Insurance, sec. 3691. Second, there is uncontradicted evidence that there were visible marks on the body, and the jury could not reasonably have found that there were, not. Third, the provision in the policy as to visible mark on the body applies only to injuries not causing death in three? months. Mallory v. Travelers Ins. Co., 47 N. Y. 52, 56; Paul v. Same, 112 id. 472, 477.
Dr. Watts, who saw the body of the insured immediately after his death, testified that he examined the body and found, there was some froth oozing from the mouth, and that he? *407noticed on the chest, and also on the abdomen, red spots,, which, to his mind, were characteristic of the canse of death; that, having smelled the odor of gas in the room, and after he-was told what the trouble was, he was convinced that the assured came to his death from gas asphyxiation and that he-had every appearance of such a death.
Counsel for appellant next contend that death “by involuntary and unconsciously breathing the atmosphere of the-room, full of illuminating gas, while asleep in bed at a hotel,”' is not within the policy, but is excluded therefrom by the provision in regard to death “from any gas or vapor, or poison,, or contact with poisonous substances.” Formerly, the clause-in relation to gas, etc., in appellant’s policies, was “nor by the-taking of poison, contact with poisonous substances, or inhaling-of gas,” etc., and in a suit on a policy which contained that clause, the New York Court of Appeals, in Paul v. Travelers Insurance Co., 112 N. Y. 472, held that the-clause did not exclude liability of the company, in the case-of an involuntary and unconscious inhalation of gas, but only in a case in which the inhalation was the voluntary and intelligent act of the assured.
In Healey v. Mutual Acc’t Association, 133 Ill., 556, the court followed the New York case cited, in holding that death caused by the inhalation of gas was caused by external and violent means. Ib. 563.
In Travelers Ins. Co. v. Dunlap, 160 Ill. 643, the suit was on a policy which, in terms, excluded liability, in the-case of the insured “taking poison.” In the statement of the case by this court, which the Supreme Court apparently adopts, it is said: “The evidence tended to show that the deceased came to his death on June 14, 1890, as the result of taking, from his own hand, a considerable quantity of carbolic acid, in place of a medicine which he desired to take, for sickness from which he was suffering at the time.”" It was objected that the death caused by taking the carbolic-acid, as stated, was not within, but was excluded from, the policy by the provision in respect to taking poison. The-court say: “While the" precise point here at issue was not *408discussed in the opinion in the Healy case, yet it was involved in the decision, and is within the reasoning there employed,” and the court held “that the term ‘taking poison’ would, in common parlance, be understood to mean an intelligent and conscious act.” The court further say: “It must, however, be conceded that the meaning of the term in the respect .mentioned is not free from doubt. Able and learned arguments have been made on each side of the question by counsel, and cases are cited showing that courts of high authority do not agree on the subject. It would therefore seem to be eminently proper, in such a case, to apply the well-known rule of construction applicable to such instruments, that where there is doubt or uncertainty as to the meaning of the terms employed, the language, being that of the insurer, must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to indemnity, which, in making the insurance, it was his object to secure. Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644; Healey v. Mutual Accident Ass’n, supra; May on Insurance, sec. 175.” The court cite with approval Paul v. Travellers Ins. Co., supra.
In Fidelity & Casualty Co. v. Waterman, 161 Ill. 632, the court, in its opinion, say: “The intestate was asphyxiated by illuminating gas in the Northern Hotel, at Aurora, Illinois, on the night ‘of December 5, 1892. He was found dead in bed on the morning of December, 6th, and the room was full of gas.” The policy contained a provision that it did not cover “injuries, fatal or otherwise, resulting from poison, or anything accidentally or otherwise taken, administered, absorbed or inhaled.” The court, after citing the Dunlap, Healy and other cases, held that the death was within the policy. It will be observed that the policy in the case last cited excludes, in terms, injuries, fatal or otherwise, resulting from poison. By the use of the word “fatal,” it excludes death resulting from poison. In the present case the. exclusion is “death * * * resulting wholly or partly, directly or indirectly * * * from gas or vapor, or *409poison.” The object of applicants in applying for such policies as the present, is to secure indemnity against accidents, and, in construing such policies, this must be kept constantly in mind. Hence the court in Metropolitan Acc’t Association v. Froiland, 161 Ill. 30, say: “Insurance contracts are to be liberally construed, so as not to defeat the indemnity, which, in making the contract, it was the object to secure, unless plainly necessary from the language of the contract.” Similar language is used in the Dunlap case, supra, and in other cases. Appellant’s counsel seek to exclude the case of Paul v. Travellers Ins. Co., supra, as authority in- the present case, on account of the following language in the opinion in that case: “If the policy had said that it was not to extend to any death caused, wholly or in part, by gas, it would have expressed precisely what the appellant now says is meant by the present phrase, „ and there could have been no ground for doubt or mistake,” and counsel say, in substance, that appellant’s policies were changed to conform to this expression of the court in the Paul case. The statement of the court is hypothetical, and the conclusion is based on the hypothetical statement. The question was not before the court as to the effect of such language as the court suggested, if in the policy. Consequently the effect of the suggested language was not debated or argued, and we think it may well be presumed that the court did not consider the suggested language, or its effect if used, as carefully as if it had been in the policy and fully argued and considered. Appellant’s counsel attempt to distinguish the Paul case and other like cases from the present, by the absence from the policy sued on of the word “inhaling,” which has been held to imply a conscious, intelligent act. . But counsel have not attempted to inform us how death can be produced by illuminating or other poisonous gas otherwise than by .inhaling it, and we think it obvious that death could not be produced by such gas in any other way. True, one might be killed by an explosion of gas, but, in such case, it would be the shock of the explosion and not the gas which would kill. If, then, the *410only way in which death can be produced by gas is by inhaling the gas, it follows that the word “inhaling” in the exclusion provision was unnecessary and would have been superfluous, and the meaning of the provision in the policy in question ,is the same as if the word “inhaling” were used in it. Inhalation can only take place in breathing, and breathing goes on involuntarily when one is asleep or unconscious.
The policy must be construed strictly as against the company, which prepared it, and liberally in favor of the insured, and if the language is doubtful, the construction must be in favor of the insured. Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644, 649; Healey v. Mut. Acc’t Ass’n, 133 ib. 556, 561; Travelers Ins. Co. v. Dunlap, 160 Ill. 642, 646; Forest City Ins. Co. v. Hardesty, 182 Ill. 39; 1 Joyce on Insurance, sections 21 and 22. Joyce also says: “The . construction should be liberal rather than critical or technical, for technical constructions are not favored. The contract should be given effect, if possible, rather than made void, for only a stern legal necessity will warrant a construction which will nullify the policy.” Ib., section 112. There can be no question that the language of the provision relied on by appellant might have been so framed as to exclude doubt of its meaning. In Cen. Mut. Life Ins. Ass’n v. Anderson, 195 Ill. 135, the life policy sued on contained these words: “This policy is void in case of death by suicide.” Anderson, the insured, shot himself with a pistol, and the company contended that it was not liable. There was a recovery on the policy, and the court held:' “If at the time of the shooting he was insane' and his reasoning faculties were so impaired that he was not able to understand the moral character, the general nature, consequence and effect of the act he was about to commit, or if he was impelled thereto by an insane impulse which he did not have power to resist, then his act was not suicide, within the sense of the term as used in the application and policy of insurance.” And the court also held that the question as.to Anderson’s mental condition was for the jury to decide. But in Seitzinger v. Modern Woodmen, 204 Ill. 58, the policy sued on pro-*411Tided that if a member should die by his own hand, sane or insane, his benefit certificate should, by reason thereof, become null and void, and the court held there could be no recovery on such policy when the insured died by his own land. These cases serve to illustrate the possibility of the removal of doubt. What has been said includes all the contentions of appellant, relied on in argument, and all others must be deemed waived.
This is not a court of last resort, and in view of the •decisions in the class of cases to which this belongs, including those cited, we do not feel warranted in interfering with -the judgment of the trial court, while, were it not for such •decisions, we would be inclined to hold that the phrase, '“death from gas,” includes the accidental, and involuntary inhalation of gas.
The judgment will be affirmed.
Affirmed.'